Citation Nr: 0031395
Decision Date: 11/30/00 Archive Date: 12/06/00
DOCKET NO. 93-14 026 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Patricia A. Boston, Counsel
INTRODUCTION
The veteran served on active duty from March 1940 to May 1945
and from October 1948 to September 1963, including combat
service during World War II.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 1992 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas, which denied service connection for the cause
of the veteran's death. The appellant, the surviving spouse
of the veteran, timely appealed the determination to the
Board. When this matter was previously before the Board in
April 1995 and May 1999, it was remanded for further
development; compliance with the latter remand is the subject
of the REMAND, below.
Contentions advanced by the appellant's accredited
representative in her informal hearing presentation dated in
October 2000 are to the effect that the appellant is entitled
to special monthly pension based on the need for the regular
aid and attendance of another person or on account of being
housebound. As this issue is not properly before the Board,
it is referred to the RO for any action deemed appropriate.
REMAND
As noted above, when this matter was previously before the
Board in April 1995 and May 1999, it was remanded for
additional development, some of which has been accomplished.
In this regard, the Board notes the primary purpose of each
remand, to obtain medical opinions from Drs. Randy Bergman
and Richard Fischer, the late veteran's treating physicians,
on the likelihood that the veteran's cause of death was
related to his service-connected neurasthenia, severe, with
irritable colon, has not been supplied.
It is significant to note that, by a letter dated in May
1999, the RO contacted the appellant and requested that she
provide the current addresses of the aforementioned two
doctors and give her authorization for the doctors to release
any treatment records of her deceased husband in their
possession. However, no response was received from the
appellant. Additionally, in a Supplemental Statement of the
Case (SSOC) dated in February 2000, the RO requested that the
appellant sign the attached VA Form 21-4138, Statement in
Support of Claim, and return it in the envelope provided.
However, no response was received from the appellant.
According to VA Form 646, Statement of Accredited
Representative in Appealed Case, dated in July 2000, the
appellant's accredited representative stated that their
organization contacted the Guadeloupe, Texas, Veterans County
Service Officer (VSO) by telephone and by fax requesting
assistance in this case. The appellant's accredited
representative also stated that their organization personally
contacted the appellant by telephone; that she advised them
that she had already sent in the information requested
several years ago; and that she was blind and could not get
out and around like she use to. The appellant's accredited
representative indicated that their organization explained to
the appellant the seriousness of her claim; that they tried
to convince her to try to contact the aforementioned doctors;
and that they tried to convince her to request the assistance
of the Guadeloupe County VSO to stop by and assist her with
the reading of letters, etc. and the replying of and to the
VA as well as any other assistance she may desire. The
accredited representative reported that they have still not
received any new information.
The Board observes that the record does, in fact, contain
copies of a completed Authorization and Consent to Release
Information to the VA (VA Form 21-4142), from the appellant
received in January 1996, for the release of medical records
from Drs. Randy Bergman and Richard Fischer. While the
record does not clearly establish that these signed
authorizations contain the current addresses for Drs. Bergman
and Fischer, the RO should have, nonetheless, utilized such
authorizations in an attempt to obtain the information
requested.
Because the record neither includes the requested opinions or
any indication that attempt to obtain such evidence via the
information already of record was unsuccessful, the Board
finds the prior remand has not fully been complied with. The
United States Court of Appeals for Veterans Claims (Court)
has specifically mandated that a remand by the Board confers
on the appellant, as a matter of law, the right to compliance
with the remand instructions, and imposes upon VA a
concomitant duty to ensure compliance with the terms of the
remand. See Stegall v. West, 11 Vet. 268 (1998). The Court
has indicated, moreover, that if the Board proceeds with
final disposition of an appeal, and the remand orders have
not been complied with, the Board itself errs in failing to
ensure compliance. Id.
Under these circumstances, the Board finds that a third
remand is required to obtain medical opinions from Drs. Randy
Bergman and Richard Fischer, the late veteran's treating
physicians, on the likelihood that the veteran's cause of
death was related to his service-connected neurasthenia, even
though such action will, regrettably, further delay a
decision in this appeal.
The Board also notes that there have been significant changes
in the law during the pendency of this appeal. On November
9, 2000, the President signed into law the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000). Among other things, this law defines VA's duty to
assist a claimant in obtaining evidence to necessary to
substantiate the claim, and eliminates from 38 U.S.C.A.
§ 5107(a) the necessity of submitting a well-grounded claim
to trigger VA's duty to assist (thus superceding the decision
in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub
nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6,
2000) (per curiam order), which had held that VA cannot
assist in the development of a claim that is not well
grounded). These changes are applicable to all claims filed
on or after the date of enactment of the Veterans Claims
Assistance Act of 2000, or filed before the date of enactment
and not yet final as of that date. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000) (to be codified as amended at 38 U.S.C. §§ 5102, 5103,
5103A, and 5107); see also Karnas v. Derwinski, 1 Vet. App.
308 (1991).
In view of the changes in the law brought about by the
Veterans Claims Assistance Act of 2000, VA must ensure
compliance with the notice and duty to assist provisions
contained in the new law. Id. This should include
consideration of whether any additional notification or
development action is required under the Act. Such
development action may include requesting information as
described in 38 U.S.C.A. § 5106, as well as the
accomplishment of a medical examination (or, obtaining a
medical opinion) when such evidence may substantiate
entitlement to the benefits sought. A claim may be decided
without providing such assistance only when no reasonable
possibility exists that such assistance will aid in the
establishment of entitlement, or the record includes medical
evidence sufficient to adjudicate the claim. Id.
The Board also points out that in light of the recent
amendment to 38 U.S.C.A. § 5107, noted above, there is no
longer a legal requirement that a claim be "well-grounded"
before it can be adjudicated on the merits; hence, the claim
should be adjudicated on the merits. These actions should be
accomplished by the RO, in the first instance, to avoid any
prejudice to the veteran. See Bernard v. Brown, 4 Vet. App.
384 (1993).
Accordingly, the Board hereby REMANDS this case to the RO for
the following actions:
1. The RO should contact Drs. Randy
Bergman and Richard Fischer at their
current address of record. (See VA Form
21-4142, Authorization and Consent to
Release Information to the VA, received
on January 17, 1996, located within the
veteran's claims folder.) The RO should
request that physician provide an opinion
as to whether it is at least as likely as
not that the veteran's cause of death was
in any way related to his service-
connected neurasthenia, severe, with
irritable colon. All conclusions, along
with the complete rationale for all
opinions expressed (to include citation,
as necessary to specific evidence in
possession) should be set forth in a
typewritten report. The reports should
be associated with the claims folder.
2. To help avoid future remand, the RO
should ensure that all requested
development has been completed (to the
extent possible) in compliance with this
REMAND. If any action is not undertaken,
or is taken in a deficient manner,
appropriate corrective action should be
undertaken. See Stegall, supra.
3. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light of
the changes in the law, the RO should
refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance that
is subsequently provided by the
Department, including, among others
things, final regulations and General
Counsel precedent opinions. Any binding
and pertinent court decisions that are
subsequently issued also should be
considered.
4. After completion of the foregoing
requested development, and after
completion of any other development
deemed warranted by the record, the RO
should consider the appellant's
entitlement to service connection for the
cause of the veteran's death in light of
all pertinent evidence of record and
legal authority, to specifically include
that cited to herein. The RO must
provide adequate reasons and bases for
its determinations, citing to all
governing legal authority and precedent,
and addressing all issues and concerns
that were noted in the REMAND.
5. If the benefits requested by the
appellant continue to be denied, she and
her representative must be furnished a
SSOC and given an opportunity to submit
written or other argument in response
thereto before her case is returned to
the Board for further appellate
consideration.
The purpose of this REMAND is to ensure that all due process
requirements are met, and it is not the Board's intent to
imply whether the benefits requested should be granted or
denied. The appellant need take no action until otherwise
notified, but she may furnish additional evidence and/or
argument while the case is in remand status.
See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v.
Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8
Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129,
141 (1992).
This REMAND must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
JACQUELINE E. MONROE
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).